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Satyendra Kumar Pal and anr. Vs. Collector of Central Excise and Land Customs and ors. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantSatyendra Kumar Pal and anr.
RespondentCollector of Central Excise and Land Customs and ors.
Excerpt:
- - the fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case, in the case of satyanarayan laxminarayan v. an error of law apparent on the face of the proceedings is recognised in england as good ground for the issue of an order of certiorari. he contended that this case has been accepted as laying down a good law by the supreme court in the case of [1958]1scr1240 ,referred to above. the privy council case referred to above has been mentioned by the supreme court when dealing with the scope of the writ of certiorari and so far as that case decides the scope of the writ of certiorari, it..... g. mehrotra, j.1. the petitioners satyendra kumar pal and manir ah have filed an application under article 226 of the constitution for a writ of certiorari quashing the order of the collector of central excise and land customs, shillong dated 17 9 1959 and further for a writ of mandamus directing the opposite parties the collector of central excise and land' customs, shillong and assistant collector of central excise and land customs, gauhati division not to give effect to the order referred to above.2. the facts giving rise to the order impugned are that the preventive intelligence officer, gauhati on the receipt of information that there were certain goods of illicit origin in the godown of sri tolaram jain searched it on 28 2 1959 on the strength of a search warrant. in the course of.....
Judgment:

G. Mehrotra, J.

1. The petitioners Satyendra Kumar Pal and Manir AH have filed an application under Article 226 of the Constitution for a writ of certiorari quashing the order Of the Collector of Central Excise and Land Customs, Shillong dated 17 9 1959 and further for a writ of mandamus directing the opposite parties the Collector of Central Excise and Land' Customs, Shillong and Assistant Collector of Central Excise and Land Customs, Gauhati Division not to give effect to the order referred to above.

2. The facts giving rise to the order impugned are that the Preventive Intelligence Officer, Gauhati on the receipt of information that there were certain goods of illicit origin in the godown of Sri Tolaram Jain searched it on 28 2 1959 on the strength of a search warrant. In the course of the search 43 bags of dry betel nuts weighing 84 Mds. 7 Srs. were found in the godown. Besides this the godown also had 3 1/2 bags of betel nuts and some chests and bags of tea.

Sri Tolaram Jain said that 43 bags of the betel nuts did not belong to him and that the two petitioners, both of village Algapur had brought 21 bags and 16 bags of betel nuts respectively to his godown at 8 A. M. on that date. The bags containing the two consignments were changed. The betel nuts were taken out of these bags and repacked in the bags belonging to him. Only 3 bags and one partly filled bag containing 7 Mds. 6 Srs. 8 Ch. of dry ... betel nuts belonged to him.

At the time of the search the two petitioners also were present. Petitioner Satyendra Kumar Pal stated that the consignment of 16 bags of split and 5 bags of whole betel nuts was booked by him consigned to self from Algapur to Gauhati. He took delivery and brought the goods to Tolaram's godown. The bags were emptied and refilled in gunny bags belonging to Sri Tolaram Jain. Sri Manir Ali also stated that he booked 16 bags of betel nuts from Algapur to Gaiihati, took delivery of the same and brought it to the godown of Sri Tolaram Jain.

The goods were emptied from the bags and they were repacked in the bags belonging to Tolaram Jain. The search officers seized the betel nuts contained in 43 bags. Notices were then given to the petitioners on the 1st the 1959 asking them to show cause as to why any penalty should not be imposed upon them. It was mentioned in these notices that the Department had reasons to believe that the goods mentioned in the notices found in charge of the petitioners at the godown of Sri Tolaram Jain, Athgaon, Gauhati had been imported from Pakistan into India through unauthorised route without a valid permit Under Section 5 of the Land Customs Act or a valid import license as required under Import Control Order No. 17/55 dated 7 12 1955' issued Under Sections 3(1) and 4A of the Imports and Exports (Control) Act, 1947 and in contravention of Section 19 of the Sea Customs Act 1878.

The goods were thus liable to be confiscated and the petitioners were liable to a penalty Under Section 167(8) read with Section 19 of the Sea Customs Act as made applicable by Section 3(2) of the Imports and Exports (Control) Act 1947. A similar notice was also issued on opposite party No, 2 Tolaram Jain on 17 6 1959. Cause was shown, but the Collector of Central Excise and Land Customs passed the impugned order. On 17 4 1959 the Assistant Collector of Central Excise and Land Customs, Gauhati informed the petitioners that as the goods are liable to depreciation if they are not disposed of without delay, arrangements were being made for the sale of the goods by public auction with the least possible delay. However as an act of grace the petitioners were permitted to take possession of the goods on or before 22-4-1959 on payment of full value of the goods, which was to be refundable to them in case the adjudicating officer ordered release thereof in his judgment. The petitioners : refused to pay the price and repurchase the goods.

3. The facts lie in a very narrow compass. It is not disputed that the goods were seized on a search made by the Intelligence Department on 28-2-1959, It is also clear that Tokram Jain dis ' claimed the ownership of the goods. The petitioners asserted that they had booked the said consignments for Gauhati which they had taken delivery of and had kept their goods in the godown of Tokram Jain but they were not able to identify and state that the goods actually seized were those which were brought by them to Tolaram's godown, The Collector of Central Excise held that the goods seized from the godown of Sri Tolaram Jain were different from the goods of the consignments belonging to Satyendra Kumar Pal and Manir Ali.

He ordered the confiscation of the seized betel nuts weighing 84 Mds. 7 Srs, and imposed further a personal penalty of Rs. 1,000/ on Tolaram Jain Under Section 167(8) of the Sea Customs Act of 1878, He further imposed a personal penalty of Rs, 500/ on the two petitioners but ordered the release of the seized 37 empty gunny bags found in the go down of Sri Tolaram Jain.

4. The learned Counsel for the petitioners contended that the order is manifestly erroneous in law and this Court should quash the order wider Article 226 of the Constitution. He maintained that the Collector of Central Excise and Land Customs when imposing the penalty acts in a quasi judicial capacity and his order is amenable to a writ or certiorari by this Court. He further submitted that the order is a speaking order and from the perusal of the order it will be clear that the Collector of Central Excise has gone beyond the ambit of his powers and that the order is based on no evidence and thus manifestly erroneous on a question of law. The Advocate General has contended that the order cannot be said to be manifestly erroneous on the question of law. It cannot be said that the order is based on no evidence. There were circumstances from which the Collector of Central Excise and Land Customs drew certain inferences of fact and it cannot be said that the decision is manifestly erroneous in law even though the inferences drawn on a question of fact by the Collector may be erroneous in the opinion of this Court,

5. Some provisions of the Imports and Exports (Control) Act and the Sea Customs Act may be set out to appreciate the points raised by the. parties. Section 19 of the Sea Customs Act 1878 provides that

the Central Government may from time to K. time, by notification in the Official Gazette, prohibit or restrict the bringing or taking by sea or by land goods of any specified description into or out of the States across any customs frontier as defined by the Central Government.

Section 167 provides that the offences mentioned in the first column of the following schedule shall be punishable to the extent mentioned, in the third column of the same with reference to such offences respectively. Column 1 of clause 8 of the Schedule attached to the Section provides as follows:

If any goods, the importation or exportation of which is for the time being prohibited or restricted by or under Chapter IV of this Act, be imported into or exported from the States contrary to such prohibition or restriction, or

if any attempt be made so to import or export any such goods, or

if any such goods be found in any package produced to any officer of Customs as containing no such goods, or if any such goods, or any dutiable goods be found either before or after landing or shipment to have been concealed in any manner on board of any vessel within the limits of any port in the States, or

if any goods, the exportation of which is prohibited or restricted as aforesaid, be brought to any wharf in order to be put on board of any vessel for exportation contrary to such prohibition or restriction.

Column 3 provides as follows:

Such goods shall be liable to confiscation; any person concerned in any such offence shall be liable to a penalty not exceeding three times the value of the goods, or not exceeding one thousand rupees.

If any import or export of any goods has been prohibited or restricted Under Section 19, an offence is committed in respect of such goods within the meaning of Section 167(8) of the Sea Customs Act and such an offence is punishable by an order in rem confiscating the property itself and by an order in persona imposing the penalty on any person concerned in the said offence. Section 3(1) of the Imports and Exports (Control) Act, 1947 gives power to the Central Government by an order published in the official gazette to make provision for prohibiting, restricting or otherwise controlling in all cases or in specified classes of cases, and subject to such exceptions, if any, as may be made by or under the order, the import or export of goods of any specified description. Clause (2) of Section 5 then says down that—

all goods to which any order under Sub-section (1) applies shall be deemed to be goods of which the import or export has been prohibited or restricted Under Section 19 of the Sea Customs Act, 1878, and all the provisions of that Act shall have effect accordingly, except that Section 183 thereof shall have effect as if for the word 'shall' therein the word 'may' were substituted.

It is not disputed that there has been an order of the proper Government restricting the import of betel nuts from Pakistan, except under certain circumstances. By virtue of the provisions of Section 3(2) of the Imports and Exports (Control) Act, all the provisions of the Sea Customs Act have been made applicable to the goods in respect of which order has been passed Under Section 3(1). Section 182 of the Sea Customs Act lays down that in every case, except, the cases mentioned in Section 167, Nos. 26, 72 and 74 to 76, both inclusive, in which, under this Act, any thing is liable to con fiseation or to increased rates of duty, or any person is liable to a penalty, such confiscation, increased rate of duty or penalty may be adjudged by a certain authority and Section 184 provides that when anything is confiscated Under Section 182, such thing shall thereupon vest in Government.

6. From the scheme of the Act and the provisions referred to above, it is clear that the adjudging authority has to act judicially and the order therefore, passed by the adjudging authority is in file exercise of its quasi judicial function and not administrative function and a writ of certiorari can be issued by this Court quashing the said order, It has been laid down in a number of cases of the Supreme Court that such an order is a quasi judicial order, vide cases of F. N. Roy v. Collector of Customs, Calcutta reported in (S) : 1983ECR1667D(SC) ,. 'Leo Roy Frey v. Superintendent District Jail, Amritsar' reported in : 1958CriLJ260 and Sew pujanrai Indrasanarai Ltd. v. Collector of Customs reported in : 1958CriLJ1355 .

The contention of the petitioner is that the order of the Collector of Central Excise and Land Customs is manifestly erroneous on a question of law. It is not disputed that a writ of certiorari will only lie if the authority has exceeded its jurisdiction or in the exercise of its jurisdiction it has violated any principles of natural justice or has committed any manifest error of law. It also now cannot be disputed that a mere error of fact cannot be rectified by a writ of certiorari, The errors which can be remedied by a court of appeal cannot be cared by issuing a writ of certiorari under Article 228 of the Constitution.

The power exercised by this Court under Article 226 of the Constitution in issuing a writ of certiorari is not that of a court of appeal. But what |b an error of law will depend upon each case. Further every error of law may not be a ground for I issuing a writ of certiorari; it is only a manifest error of law which can be a ground for issue of a writ of certiorari. No hard and fast test can be Md down for determining which error of law can b regarded as a manifest error of law. The following observation in the case of Hari Vishnu Ka math v. Ahmad Ishaque, reported in is) : [1955]1SCR1104 will be apposite;—

It may therefore be taken as settled that a writ of 'certiorari' could be issued to correct an error of law. But it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the Jaee of the record? learned Counsel on either side were unable to suggest any clear cut rule by which the boundary between the two classes of errors could be demarcated.

Mr. Pathak for the first respondent contended on the strength of certain observations of Chagla, C. J. in 'Batuk K. Vyas v. Surat Borough Municipality'. : AIR1953Bom133 , that no error could be said to be apparent on the face of the record if it was not self evident and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this: test might break down, because judicial opinion also differs, and an error that might he considered , by one Judge as self evident might not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case,

In the case of Satyanarayan Laxminarayan v. Mal likarjun Bhavanappa, reported in A.I.R. I960 SC 137 it was held that

an error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the) superior court to issue such a writ.

7. It was urged by the counsel for the petitioners that a decision based on no evidence will be a question of law and if the order itself shows that the decision is based on no evidence it will be a manifest error of law. The Advocate General' has very strenuously relied upon the case of Nagendra Nath Bora v. Commr. of Hills Division and Appeals, Assam, reported in : [1958]1SCR1240 in support of the contention that a decision based on no evidence cannot be said to be a manifest error of law.

This case to my mind decides two points, firstly that an error of fact though apparent on the face of the record could not be a ground for interference by the court exercising its jurisdiction, and Secondary that there error of law cannot be a. ground for issue of writ of certiorari. It must be a manifest error of law. At p. 412 of the report the question formulated was as follows:

But the question still remains as to what is the legal import of the expression 'error of law apparent on the face of the record.' Is it every error of law that can attract the supervisory jurisdiction of the High Court, to quash the order impugned.

The question is answered as follows:

this Court, as observed above, has settled the law in this respect by laying down that in order to attract such jurisdiction, it is essential 'Si that the error should be something more than a mere error of law; that it must be one which is manifest on the face of the record. In this respect, the law in India and the law in England are. therefore, the same. It is also clear on an examination of all the authorities of this Court and of those in England, referred to above, as also those considered in the several judgments of this Court, that the common law writ, now called order of certiorari, which was also adopted by our Constitution, is not meant to take the place of an appeal where the statute does not confer a right of appeal. Its purpose is only to determine, on an examination of the record, whether the interior tribunal has exceeded its Jurisdiction or has not proceeded in accordance with the essential require T ments of the Jaw which it was meant to minister. Mere formal or technical errors, even though of law. will not be sufficient to attract this extraordinary jurisdiction.

Then examining the facts of that case it was held that the errors over which the High Court had exercised its supervisory jurisdiction, were not errors apparent on the face of the record. They were errors in appreciation of the documentary, evidence or affidavits, errors in drawing inferences or omission to draw inferences. In other words they were errors which a court sitting as a court of appeal only could have examined and if necessary corrected.

This case, to my mind, does not lay down that if the decision of an authority is based no evidence, it can never be regarded as a manifest error of law. It also does not, to my mind, lay down that in every case where the error of law could be corrected by a court of appeal, it cannot be a manifest error of law. As has been pointed out in this very case

the principle underlying the jurisdiction to issue a writ or order of certiorari, is no more in doubt, but the real difficulty arises, as it often does, in applying the principle to the particular facts of a given case.

In the case of Ramesh Chandra Verma v. R. D Verma, reported in : AIR1958All532 it was held that a decision based on no evidence can be a manifest error of law. In cases where the order of an inferior tribunal can be regarded as a speaking order it will be examined by the court and if it appears from the perusal of the order itself that reliance has been placed on the evidence which cannot be regarded as evidence at all establishing the charge, it is open to the court to set aside the order on the ground of manifest error of law. In the case of 'Babu Ram Sharma v. State of Uttar Pradesh' reported in A.I.R. 1953 AIL 641 it was observed as follows:

The result is, therefore, that the Regional Transport Authority and the State Transport Tribunal have arrived at a finding of fact which is not only unsupported by any evidence but is contrary to such evidence as there is; and to come to a finding of fact in the absence of any evidence amounts, in my view, to an error of law if. not to a . violation of the principles of natural justice. An error of law apparent on the face of the proceedings is recognised in England as good ground for the issue of an order of certiorari.

In the case of 'R. v. Birmingham Compensation Appeal Tribunal' reported in (1952) 2 All E. Rule 100 it was observed at page 101 of the report as follows:

For the purpose of the case it was immaterial to determine whether 'customary practice'' within .. para 8(1X0 meant something. confined to the re lationship between the workman and his own employers or whether it involved larger considerations of what was customary in a particular trade since, whether the wider or narrower meaning was contemplated, a single case of manager receiving payment by way of compensation on discharge was not what the regulations contemplated by 'customary practice', and there was no evidence in this case of an 'expectation under customary practice to the payment of compensation in the event of discharge.' Accordingly, as an error of law appeared on the face of the award the certiorari would issue to remove the order into the High Court to be quashed.

8. The Advocate General referred to the Privy Council case of R, v. Nat Bell liquors Ltd. reported in (1922) 2 A. C. 128 for the proposition that the existence of no evidence cannot be regarded as a manifest error of law. He contended that this case has been accepted as laying down a good law by the Supreme Court in the case of : [1958]1SCR1240 , referred to above. In my judgment the case of (1922) 2 AC 128 is not an authori ty for the proposition that non existence of any evidence can never be regarded as a manifest error of law, nor has, as I have already pointed out, the Supreme Court in Nagrendra Nath Bora's case : [1958]1SCR1240 laid down any such proposition.

The Privy Council Case referred to above has been mentioned by the Supreme Court when dealing with the scope of the writ of certiorari and so far as that case decides the scope of the writ of certiorari, it has been accepted as a good law. As the following two passages from that judgment, will show, their Lordships of the Privy Council were only considering the effect of total absence of evidence on the question of jurisdiction and the question as to whether a decision based on no evidence can be regarded as manifestly erroneous, was not considered by their Lordships in this case at alt. The head note of the case lays down that

a conviction by a magistrate for a non indictable offence cannot be quashed on certiorari on the ground that the depositions show that there was no evidence to support the conviction, or that the magistrate has misdirected himself in considering the evidence; absence of evidence does not affect the jurisdiction of the magistrate to try the charge.

At page 156 of the report however, it is observed as follows:

That the superior Court should be bound by the record is inherent in the nature of the case. Its jurisdiction is to see that the inferior Court has not exceeded its own, and for that very reason it is bound not to interfere in what has been done within that jurisdiction, for in so doing it would itself, in turn, transgress the limits within which its own jurisdiction of supervision, not of review, is confined. That supervision goes to two points: one is the area of the inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of the law in the course of its exercise.

At page 152 of the report it was further observed as follows:

To say that there is no jurisdiction to convict without evidence is the same thing as saying that there is jurisdiction if the decision is right, and none if it is wrong; or that jurisdiction at the outset of a case continues so long as the decision stands, but that, if it is set aside, the real conclusion is that there never was any jurisdiction at all,

The questions which were argued in that case are formulated at page 143 as follows:

(1) Without Bolsing there was no evidence of the commission of the offence by the accused company, and his evidence was no evidence, since he was an accessory before the fact and was uncorroborated; (2) it was not evidence on which a jury could safely convict, and ought therefore to be treated as no evidence at all; (3) want of evidence or of sufficient evidence makes the conviction one pronounced without jurisdiction; (4) such want of jurisdiction can be established by evidence dehors what is set out on or forms part of the record of the conviction.

Dealing with the first two points formulated above, the Privy Council at page 144 observed as follows:

On certiorari, so far as the presence or absence of evidence becomes material, the question can at most be whether any' evidence at all was given on the essential point referred to. Its weight is entirely for the inferior Court: 'If indeed there had been my evidence whatever, however slight, to establish this point,' said Lord Kenyon in Rex v. Smith, (1800) 8 TR 588 (590) 'and the magistrate who convicted the defendant had drawn his conclusion from that evidence, we would not have examined the propriety of his conclusion; for the magistrate is the sole judge of the weight of the evidence. And for this reason I think there is no foundation for the first objection.... There was some evidence from which he might draw the conclusion.

The latter part of the judgment deals with the 3rd question formulated above, namely, want of evidence or of sufficient evidence makes the conviction one pronounced without jurisdiction.

9. In the light of the authorities referred to above, the question is to be examined, with reference to the facts and circumstances of the present case and the impugned order. On the 28th February 1959 the premises of Tolaram Jain were searched on the strength of a search warrant issued by the Sub Divisional Magistrate, Gauhati under the provisions of Section 172 of the Sea Customs Act. Dry betel nuts weighing 84 maunds 7 seers were detained by the Preventive Intelligence Officer, Central Excise and Land Customs.

In the memo of search, it is however mentioned that the betel nuts were detained from the possession of the two petitioners as they claimed the betel nuts, on suspicion that these had been illegally imported by the said two persons and stored and concealed in the godown. Certain account books were also seized. Thereafter on the 17th April 1959 letter was sent under the signature of the Assistant Collector of Central Excise and Land Customs to the two petitioners giving them an opportunity to take possession of the seized goods on payment of full value. On the 1st June 1959 notice was given to the two petitioners to show cause why the goods be not confiscated and penalty imposed on the applicants, and that adjudication proceedings were going to be started Under Section 182 of the Sea Customs Act.

It is however, significant to note that in this notice it is mentioned that the authorities had reason to believe that the goods mentioned in the schedule were found in the charge of the petitioners at the godown of Sri Tolaram Jain of Athgaon, Gauhati and had been imported from Pakistan into India through unauthorised route without a valid permit Under Section 5 of the Land Customs Act, a valid import license as required under Import Control Order No. 17/55 lated 7-12-55 issued Under Sections 3(1) and 4 A of the Imports and Exports (Control) Act or in contravention of Section 19 of the Sea Customs Act. On 3-6-1959 reply was sent to this notice. On 22nd August 1959 an order was passed by tha Assistant Collector of Central Excise which has been filed as 'Annexure 9' to the petition, in which it is stated as follows:

From the report of enquiry officer, it is seen that there is no prima facie case to establish the illicit origin of the betel nuts. The Report says that all the persons who sold betel nuts to Shri Satyendra Kumar Paul possessed betel nuts gardens, the enquiry officer has deduced the conclusion that the nuts were of Pakistan origin. His conclusion is based on the plea that the accounts have been cooked and persons have been tutored, but only guessing cannot help. To establish the case, we have to collect evidence direct or indirect that the nuts came from Pakistan. Hence in the absence of any such proof, I consider that the betelnuts should be released to Shri Satyendra Paul and Manir Ali.

This order however, appears to have been passed in respect of some other consignment belonging to the petitioners.

10. In paragraph 7 of the petition it is averred that on the 11th April 1959 the petitioners were.. given an opportunity to purchase goods at their full value by the Assistant Collector. Thereafter the petitioners made several representations for the release of the goods and by that time Mr. R. N. Sen who was the Assistant Collector, went on leave and Mr. M. L. Budhwar came in his place and he referred the matter to the Collector of Central Excise and Lands Customs for the release of the goods. Thereafter Mr. K. S. Saha took over as Assistant Collector and he sent a telegram to the Collector for expediting the release. Thereafter Mr. M. M. Gupta took over charge as Assistant Collector and the show cause notice was issued by him.

11. In the counter affidavit it is admitted that an offer was made to the petitioners to get back the possession of the goods seized, by depositing the value of the goods. With regard to allegations in paragraph 8 of the petition it is however stated that Sri M. L. Budhwar who took over the charge of the post of the Assistant Collector from Sri R. N. Sen, referred the matter to the Collector for the release of the goods. Soon after that Sri K. S. Saha took over charge from Sri Budhwar and he also sent a telegram for expediting a reply to the then Assistant Collector's reference. On their report the Collector sent a reply to the Assistant Collector that if he was satisfied that there was no prima facie case, the goods may be released.

In the meantime Sri Gupta took; over the charge of the post of the Assistant Collector and he received the letter sent to his predecessor conveying the instructions that the goods should be released if the predecessor was satisfied that there was no prima facie case. Mr. Gupta then studied the case and found that there was a prima facie case and he proceeded to make further inquiries and then show cause notices were issued to the petitioners and respondent No. 2. No release order was however issued by the Collector.

In paragraph 8(b) of the counter affidavit it is alleged that after due investigation the officers of the Customs Department found respondent No. 2 Tolaram to be the person in actual possession of the seized betel nuts and the petitioners were aiding him. So show cause notices were issued on ail the three persons. It should be pointed out that in the show cause notice there is no clear mention that the two petitioners were charged for aiding Tolaram in the commission of the offence. On the contrary as I have already indicated, the notice shows that i the goods were treated to be in the charge of the petitioners at the godown of Sri Tolaram Jain and the petitioners were charged for having imported the seized goods from Pakistan into India through unauthorised route without a valid permit.

The second fact which is clear from the counter affidavit itself is that the show cause notice itself was not issued at the instance of the Collector of Central Excise and Land Customs but on the satisfaction of the Assistant Collector Sri Gupta. v The predecessors of Mr. Gupta had recommended release of the goods. On what basis they had recommended the release of the goods does not appear from the records, but from the counter affidavit it is clear that the matter was left to the Assistant Collector to either issue a show cause notice or to drop the matter.

For, if the predecessors in interest of Mr. Gupta had not been transferred, perhaps the notice may not have been issued, because they had already suggested the release of the goods. From the counter affidavit it is clear that it was Mr. Gupta who after some investigation was of opinion that a prima facie case had been made out and issued a show cause notice to the petitioners.

12. Under Section 182 of the Sea Customs Act the goods being valued at more than Rs. 250/ the adjudication has to be done by the Collector of Customs. It is not disputed that the power to adjudicate in this case vested in the. Collector and not the Assistant Collector. The notice to show cause therefore, in my opinion should have been issued on the satisfaction of the Collector and not of the Assistant Collector. Moreover if the charge against the petitioners was that they aided in the commission of the offence, the charge 'should have been clearly made against the petitioners.

From the perusal of the impugned order it will appear that the representatives of the parties were heard on the date of the enquiry by the Collector at Gauhati. In paragraph 3(d) of the counter affidavit it is stated that after going through the statements filed by the petitioners and respondent No. 2 Tolaram at different times, the petitioners and respondent No. 2 were asked to appear before the Collector to represent their case which they did through their lawyers and after due consideration of all the facts and circumstances, the Collector was of opinion that the betel nuts in question were of foreign origin and had been illicitly obtained and the petitioners and Tolaram were the persons who were concerned in the illicit trade, so the impugned order was passed.

Section 182 of the Sea Customs Act does not require that the order is to be passed on a subjective determination of the Collector. The power given to the Collector is to adjudicate on the matter as to whether the goods are liable to be confiscated or not. The order therefore is to be based on evidence and not on the formation of the opinion by the Collector which may be based on some materials in possession of the Collector. There is no material before the Collector to show as to when and how these goods were imported.

The Collector has found that no conclusion could be drawn regarding the origin of the betel nuts. In those circumstances on the face of it it could not be said that the goods must have been imported illegally or in contravention of the provisions of Section 19 of the Sea Customs Act, The finding of the Collector is in the following terms:

It is thus evident that Shri Tolaram Jain has been endeavouring to create an impression that the betelnuts contained in 43 bags belonging to him and stored in his godown which are not mentioned in his account are traceable to the goods moved by rail from Algnpur in 16 bags belonging to Shri Manir Ali and 21 bags belonging to Shri Satyendra Paul. It is obvious that Shri Tolaram resorted to this unusual method of accounting for the unaccounted for goods only with a view to create an impression that the goods were obtained from licit sources, Since he had failed to adduce any evidence to corroborate the above source of supply, I conclude that the unaccounted for goods are of illicit origin and are, therefore, liable to confiscation.

13. The two petitioners were alleging that the goods belonged to them and they were the goods which were received by them under the two consignments. Tolaram also said that these goods did not belong to him but they were the goods which were kept in his godown by the two petitioners. The Collector disbelieved the petitioners and Tolaram Jain on this account and then held that as Tolaram failed to corroborate the particular source of the goods, the goods must necessarily be of illicit origin. The failure on the part of Tolaram to substantiate the source from which he got these goods or to positively prove that the got them from the two petitioners may throw some doubt on his conduct,

His conduct or that of the petitioners may be suspicious and if it had been otherwise proved that the goods were of illicit origin, and in respect of these goods an offence had been committed, these circumstances could have been regarded as a valid evidence to hold the petitioners and Tolaram as persons aiding in the commission of the offence. But the circumstance referred to by the Collector cannot by itself be any evidence of the fact that these goods were of illicit origin. The Collector also has, as I have already indicated in the earlier part of the order, observed that no conclusions could be drawn regarding the origin of the betel nuts from the circumstances pointed out by him,

14. The Collector has found that two distinct consignments belonging to the two petitioners were booked separately from Algapur to Gauhati and that these two consignments were booked by the same train and maintained the separate identity till the delivery of the consignments from the Railways. He has, however, held that as there is some discrepancy in the statements made at different stages relating to the taking delivery of the consignments, bringing the goods to Tolaram's godown and his taking delivery thereof and further more, as the two petitioners stated in writing at the time of seizure their inability to identity the goods belonging to each of them, — die goods seized from the godown of Sri Tolaram Jain were different from the consignments belonging to the two petitioners.

As regards the origin of these goods the legal representative of the petitioners and Tolaram stressed that the opinions obtained from trade on the samples of seized betel nuts go to indicate that these goods were of Indian origin, but the Director of Agriculture emphatically expressed that it was not possible to give any opinion on the origin of the betelnuts. Accordingly the Collector was of opinion that no conclusion could be drawn regarding the origin of the nuts. There is no evidence therefore, to show that these goods were of Pakistan origin, nor has it been proved by any evidence that they could not be procured in India.

There is thus no evidence that these goods were imported from Pakistan. If the goods were found to be of Pakistan origin and they were ultimately seized within the Indian territory, a presumption might have been raised that they must have been brought into India and the only question then would have been as to the manner how they were imported. But in the absence of any evidence that they were of Pakistan origin, the very foundation of the charge fails.

As I have already pointed out, from the failure of Tolaram to corroborate the story that the goods kept in his godown by the two petitioners were the goods which they had obtained under distinct consignments, no inference could be drawn that the goods were of illicit origin. Before the goods could he confiscated, it was necessary to establish that they have been imported. Once it is established that they have been imported, the next step will be to prove that they have been imported in contravention of the orders passed Under Section 19 of the Sea Customs. Act.

15. Section 178 of the Sea Customs Act provides that

any things liable to confiscation under this Act may be seized in any place, either upon land or water, by any officer of Customs or other person I duly employed for the prevention of smuggling.

This Section only gives power to seize certain goods which are liable to be confiscated. But by merely seizing goods on suspicion that they were smuggled goods and were liable to be confiscated, the offence cannot be said to be established. After the goods have been seized, the authority has to adjudicate if they are liable to be confiscated and the adjudicating authority has to determine if these goods have been imported. If the decision of the Customs authority is accepted, the position is that in case any person is found in possession of any goods which can be produced in India as well as in any foreign country, unless the person is able to prove that he got the goods through a particular source, the goods will be presumed to be of illicit origin.

This proposition has only got to be stated to be rejected. It is true that in cases where the goods are seized at the Customs barrier, there is no difficulty. But there may be eases where the goods may be seized long after they had been actually imported and it may be difficult for the authorities to s'1 establish by direct evidence the fact that they were imported without license. On the other hand if the authorities are given wide power to confiscate any goods, though found in possession of some person within the territory of India on mere suspicion and without giving any evidence direct or circumstantial to prove that these goods had been smuggled, innocent people are also likely to Suffer and such a wide power could not have been contemplated under the provisions of the statute. By the Sea Customs (Amendment) Act 21 of 1955 Section 178A was added to remove this difficulty. It provides as follows:

178A. (1) Where any goods to which this x Section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be on the person from whose possession the goods were seized.

2. This Section shall apply to gold, gold manufactures, diamonds and other precious stones, cigarettes and cosmetics and any other goods which the Central Government may by notification in the official Gazette, specify in this behalf.....

In the class of goods specified in Sub-section (2) and any other goods which may be so notified by ,_ the Central Government, the burden of proof has been inverted by enacting this Section.

16. The genesis of Section 178A is that the Central Government had appointed a commission known as the Taxation Enquiry Commission which by its report recommended the adoption of the principles underlying Section 178A in order to minimise smuggling. The Commission recommended the amendment of the Sea Customs Act firstly to make smuggling a criminal offence, and secondly empowering customs officers to search premises etc, and thirdly to transfer the onus of proof in respect of offences relating to smuggling to the person in whose possession any dutiable, restricted or prohibited goods were found. Under the ordinary law the burden of proof in matters where one party sets up a /'particular case lies on that party and unless Section 178A is attracted, in the present case, the ordinary law would apply. It cannot be said that there was any evidence by which it could be inferred that the goods were of illicit origin and consequently imported into India in contravention of the provisions of Section 19 of the Sea Customs Act.

17. Section 178A applies only to certain goods described in Sub-section (2) of the Section. The presumption only attaches to goods specified therein and if they have been seized under the Act in the reasonable belief that they are smuggled goods. From the perusal of the order impugned it is clear that the Collector was of opinion as if Section 178A applied to the present case and that there was a presumption that the goods were smuggled goods, unless the presumption was rebutted by evidence on behalf of the person from whose custody the goods were seized. This is a manifest error of law committed by the Collector.

18. The next point urged by the Advocate General is that the Collector found that the property did not belong to the two petitioners and was owned by Tolaram. Tolaram has not challenged the order of the Collector. The petitioners have thus no interest in the property confiscated and they have no right to get any relief under Article 226 of the Constitution. In my opinion there is no substance in this contention. The goods were seized on the ground that they were suspected to be smuggled goods.

Under Section 182 of the Sea Customs Act the Collector had to adjudicate whether the goods were ' liable to be confiscated or not and whether an offence had been committed Under Section 167(8) of the Sea Customs Act, The Collector had power to order confiscation of the seized articles as well as impose penalty on the persons aiding in the commission of the offence. The Collector imposed a penalty on the petitioners. The petitioners were therefore, affected by the order passed by the Collector and they had a right to come to this Court under Article 226 of the Constitution and ask for quashing the order.

They being party to the order which they are seeking to be quashed, it cannot be said that they had no interest which gave them a right to come to this Court under Article 226 of the Constitution. The order imposing penalty on the petitioners is also manifestly erroneous. After having held that the petitioners failed to establish that the consignments despatched by them from Algapur to Gauhati were in fact despatched and that the goods seized were not the goods which were the subject of the two consignments, it is difficult to hold that the petitioners aided in the commission of the offence.

The gravamen of the charge was that these goods were imported without license or in contraven tion of the provisions of Section 19. If the petitioners can have no concern with these goods merely by their act of asserting that these goods were the goods which were brought by them from Algapur to Gauhati, it cannot be inferred that they were aiding Tolarara in the commission of the offence of importing these goods in contravention of the provisions of Section 19. The only inference which can be drawn is that they have wrongly asserted that these goods were the goods which were consigned in their name and despatched from Algapur to Gauhati.

19. The next contention of the Advocate General is that even assuming that the order imposing a penalty can be set aside at the instance of the petitioners, the order regarding the confiscation is severable and cannot be set aside at the instance of the petitioners. The question cf Eeverability has been the subject of consideration in a number of cases of the Supreme Court, In the case of 'R. M. D. Chamarbaugwalla v. Union of India' reported in : [1957]1SCR930 it has been summarised as follows:

1. In determining whether the valid parts or a statute are separable from the invalid parts thereof, it is the intention of the legislature that is the determining factor. The test to be applied is whether the legislature would have enacted the valid parts if it had known that the rest of the statute was invalid. Vide Corpus Juris Secundum, vol. 82, p. 156; Sutherland on Statutory Construction, vol. 2 pp. 176 177.

2. If the valid and invalid provisions are inextricably mixed up that they cannot be separated from one another, then the invalidity of a portion must result in the invalidity of the Act in its entirety. On the other hand, if they are so distinct and separate that after striking out what is invalid, what remains is in itself a complete code independent ot the rest, then it will be upheld notwithstanding that the rest has become unenforceable. Vide Cooley's Constitutional Limitations, vol. 1 at pp. 360 361; Crawford on Statutory Construction, pp. 217 218.

3. Even when the provisions which are valid are distinct and separate from those which are invalid, if they all form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole. Vide Crawford on Statutory Construction, pp. 218 219.

4. Likewise, when the valid and invalid parts of a statute are independent and do not form part of a scheme but what is left after omitting the invalid portion is so thin and truncated as to be in substance different from what it was when it emerged out of the legislature, then also it will be rejected in its entirety.

5. The separability of the valid and invalid provisions of a statute does not depend on whether the law is enacted in the same Section or different Section; (Vide Cooley's Constitutional Limitations, vol. 1, pp. 361 362); it is not the form, but the substance of the matter that is material, and that has to be ascertained on an examination of the Act as a whole and of the setting of the relevant provision therein.

6. If after the invalid portion is expunged from the statute what remains cannot be enforced without making alterations and modifications therein, then the whole of it must be struck down as void, as otherwise it will amount to judicial legislation, Vide Sutherland on Statutory Construction, vol. 2, p. 194.

7. In determining the legislative intent on the question of separability, it will be legitimate to take into account the history of the legislation, its object, the title and the preamble to it. Vide Sutherland on Statutory Construction vol. 2, pp. 177 178.

Applying these principles it cannot be said that the order about confiscation is severable from the order imposing penalty on tile petitioners, One of the reasons why no penalty could be imposed on the petitioners in the present case is that the goods have not been established to be smuggled goods and consequently the order of confiscation of those goods also, cannot stand. Moreover it is contended by the petitioners that this Court has no power on certiorari to amend the impugned order by striking out only a portion of the order.

The essence of the remedy of certiorari is that it necessarily involves revising the decision of the inferior court to which it is directed in one of the three ways: (a) by quashing it (b) by removing the case and trying it in a court of competent jurisdiction or (c) by causing it to be reheard. It necessarily involves an examination of the decision of the court as a whole. Reliance is placed for the proposition in the case of R. v. Willesden Justices, Ex Parte Utley reported in (1948) 1 K. B. 397. It is not however necessary to go into this question in detail.

It is sufficient to point out that on the finding that there is a manifest error of law committed by the Collector the order cannot be upheld simply on the ground that Tolaram has not come up to this Court. The question of title could not be adjudicated by the Customs authorities.. The decision or the Customs authorities only is that the goods being smuggled goods, they are liable to be confiscated and further a penalty has been imposed on the petitioners. Petitioners having been affected by the order, can come to this Court and get the order quashed if they have succeeded in establishing that the order is manifestly erroneous.

20. The Advocate General raised a preliminary objection to the grant of the relief. He submitted that Under Section 188 of the Sea Customs Act an appeal lay from the order of the Collector to the Chief Customs Authority. On appeal such authority can make further inquiries and pass such orders as it thinks fit, confirming, altering or annulling the decision of the order appealed against. Under Section 191 of the Sea Customs Act the Central Government has power on an application of any person aggrieved by the order to revise the order. There is thus a hierarchy of officers to redress the grievance of the petitioner and this Court will not exercise its powers under Article 226 of the Constitution where an adequate alternative remedy is available.

It was further submitted that the petitioners having failed to avail of the alternative remedy by not filing the appeal within three months from the date of the decision as provided for Under Section 188 of the Act, cannot now invoke the jurisdiction of this Court under Article 226 of the Constitution. There is no rule with regard to certiorari as there is with mandamus that it will lie only where there is no other equally effective remedy. The existence of another remedy may be taken into consideration in. the exercise of the discretion. '

As was laid down by the Supreme Court in the case of State of Uttar Pradesh v. Mahammad Nooh reported in 1958 SCR 595 corresponding to A.I.R. 1958 SC 86 if an inferior court or tribunal of first instance acts wholly without jurisdiction or patently in excess of it, or contrary to the rules of natural justice, a superior court may quite properly issue a writ of certiorari to correct the error even if an appeal to another inferior court or tribunal was available whether recourse was or was not had to it. It was further observed in this case as follows:

It has also been held that a litigant who has lost his right of appeal or has failed to perfect an appeal by no fault of his own may in a proper case obtain a review by certiorari. (See Corpus Juris Secundum Vol. 14, Article 40, p. 189). If, therefore, the existence of other adequate legal remedies Is not per se a bar to the issue of certiorari and if in a proper case it may be the duty of the superior Court to issue a writ of certiorari to correct the errors of an inferior Court or tribunal called upon to exercise judicial or quasi judicial functions and not' to relegate the petitioner to other legal remedies available to him and if the superior Court can in a proper case exercise its jurisdiction in favour of a petitioner who has allowed the time to appeal to expire or has not perfected his appeal e. g. by furnishing security required by the statute, should then be laid down as an inflexible rule of law that the superior Court must deny the writ when an inferior Court or tribunal by discarding all principles of natural justice and all accepted rules of procedure arrived at a conclusion which shocks the sense of justice and fair play merely because such decision has been upheld by another inferior Court or tribunal on appeal or revision?

21. In the result therefore, I allow this petition and quash the order of the Collector of Central Excise and Land Customs, Shillong dated 17th September 1959 and direct the opposite parties No. 1 and 3 not to give effect to that order, but parties will bear their own cost.

Deka, J.

22. I agree with my learned brother in holding that a finding based on no evidence is an error of law — and it can in some cases amount to a manifest error of law apparent on the face of the record, where this Court's interference under Article 226 is perfectly justified. In this particular case it is clear that the articles seized were not identified nor established to be smuggled goods or of illicit origin. Therefore, the seizure was accordingly unjustified and the penalty imposed beyond the jurisdiction of the Department. I accordingly agree that the impugned order should be set aside.


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